Free Speech and the Paradox of Tolerance

Any time activists (regardless of affiliation) protest a public speaking event, or the publication of a particular book or article, there will inevitably be claims that such actions threaten “free speech” or constitute “censorship.” Lately, these sorts of claims have been heard following the presidential-inauguration-day silencing (via punching) of white nationalist leader Richard Spencer while he was being interviewed, and after protesters attempted to force the cancellation of Brietbart editor Milo Yiannopoulos’s speaking engagements at University of Washington and UC Berkeley. Some people who take such a stance do so for purely political reasons — they share Spencer’s and Yiannopoulos’s views, and invoke “free speech” to make their ideologies appear unassailable. Many others who do not share these views may instead adhere to free speech absolutism, and their reasoning might be summarized as follows:

1) The First Amendment to the Constitution (or analogous statutes in other countries) ensures our right to “freedom of speech.”

2) Therefore, even if we detest Spencer’s and Yiannopoulos’s extreme racist, misogynistic, and xenophobic beliefs, we must nevertheless defend their right to freely express them.

3) Any attempt to suppress or silence Spencer or Yiannopoulos (or their views) is essentially an attack on freedom of speech itself. And once we start down that slippery slope, it is only a matter of time before we find that our own freedom of speech is in jeopardy as well.

While the free speech absolutist position may sound compelling on the surface — indeed, it is what most of us were taught in school, and what most intellectuals espouse — the reality is not nearly so clear-cut. For instance, the courts have ruled that false statements of fact, defamation, obscenity, fighting words, and incitement (e.g., shouting “fire” in a crowded theater) do not qualify as protected speech. There are also occasions where our right to free speech bumps up against (and therefore, may be restricted by) other rights (e.g., privacy) and laws (e.g., copyright protection).

Aforementioned exceptions aside, while the First Amendment prohibits the government from passing laws that prohibit our freedom of speech (plus freedom of press, the right to peaceably assemble, and so on), this by no means guarantees us the right to speak our minds however and wherever we want. I obviously do not have the right to give a speech in your living room, or to force you to publish my article in your newspaper. And of course, free speech does not shield us from criticism: If you don’t like what I have to say, then you have every right (via your freedom of speech) to criticize me, sign a petition condemning me, and/or protest my next public appearance. An organization is free to invite me to give a talk in their space, but they are also free to rescind that invitation upon further consideration (e.g., if they think that I might offend or injure members of their community, or if they simply want to avoid “bad press” — yet another manifestation of freedom of expression).

In other words, we have the right to free speech, but that right is somewhat limited. We are by no means entitled to “free speech without criticism or consequences,” nor are we entitled to an audience.

While it is important to keep these well-established limitations on free speech in mind, what I really want to focus on in this essay — especially given the steep rise in openly expressed white nationalist rhetoric over the last year — is the paradox of free speech. Here is what I mean: Spencer has used his right to free speech to call for “peaceful ethnic cleansing” — presumably this entails scaring people into fleeing and/or using the legal system to forcibly purge all people of color and indigenous peoples from the United States. Wouldn’t that be tantamount to silencing these groups, thereby violating their freedom of speech (not to mention countless other rights)? Or take what happened to actor/comedian Leslie Jones last summer: She was forced to leave the social media platform Twitter and had to shut down her personal website after Yiannopoulos incited a fierce campaign of doxxing and harassment against her. In other words, he used his free speech to suppress her free speech. (And for the record, he has done this to many other people.)

Hate speech, and other speech acts designed to harass and intimidate (rather than merely express criticism or dissent), are routinely used to thwart other people’s freedom of expression. Free speech absolutists tend not to consider or fully appreciate this, probably because most of them have never felt silenced by pervasive or systemic hatred and intolerance before. Others of us, however, have experienced this first hand.

I grew up during the 1970s and ’80s, during a time when transgender people were extremely stigmatized and not tolerated by society at large. As a child, I saw how gender-variant people were openly and relentlessly mocked, so I decided not to tell anyone about what I was experiencing. As a young adult, I continued to remain quiet about my identity. Colloquially, we call this being “in the closet,” but that’s just a fancy way of saying “hiding from hate speech and harassment.” Of course, I technically had free speech, but that doesn’t count for much if speaking your mind is likely to result in you being bombarded with epithets, losing your job, being ostracized by your community, and possibly other forms of retribution. When I attended my first transgender support group in the early ’90s, we held our meetings in a secret location because, despite our First Amendment right to peaceably assemble, it was simply not safe for us to meet in public or be discovered by others.

Free speech absolutists love to cite George Orwell’s 1984 as harbinger of what might come to pass if we fail to adhere to complete unadulterated free speech. I find this ironic, as it was my favorite book growing up. This was not because I was fascinated with its futuristic dystopian setting, but because the world it described very much reflected my own personal circumstances. I identified with the main character Winston — the panic he felt as he wrote in his journal, his fear of what might happen if he were ever found out. Years later, I would name myself Julia after the female protagonist of the book — like me, she was a passionate person who kept that part of herself hidden from an inhospitable world; she was a survivor who took pride in her ability to conceal what she was really thinking.

I think that “freedom of speech” is a lovely aphorism. And aphorisms are useful. But I am not gullible enough to believe that “free speech” (as free speech absolutists envision it) actually exists, or that it is something that I have ever truly possessed. The truth of the matter is that there are two types of speech or expression: those that we (either as individuals, or as a society) are willing to tolerate, and those that we do not. (This is explained compellingly here.) You may cherish a particular word, idea, expression, or identity. But if enough people collectively refuse to tolerate it, well . . . you can shout “free speech!” at the top of your lungs all you want, but it isn’t going to protect you.

Believing that freedom of speech is generally a good thing — an ideal worth striving for — but also knowing that speech can be (and often is) used to suppress other people’s freedom of expression, the question becomes: How do we best strike a balance between these two competing forces? I remember expressing a potential solution to this problem in a conversation that I had with a friend in the late ’90s. I told him that I tolerate all forms of expression, except for expressions that convey intolerance toward others. My friend was a free speech absolutist, and found my pronouncement to be hypocritical. He argued that being intolerant of intolerance was itself a form of intolerance. I argued the reverse: If I tolerated intolerance, that would not make me a tolerant person; it would merely make me an enabler of, or accomplice to, intolerance.

Years later, thanks to the invention of Internet search engines, I discovered that the line of reasoning that I had forwarded had been previously (and more eloquently) expressed by someone who had considered this problem far longer and in more depth than most of the rest of us have. In The Open Society and Its Enemies, philosopher Karl Popper described this as “the paradox of tolerance.” Here is how he put it:

Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them. In this formulation, I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be most unwise. But we should claim the right even to suppress them, for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to anything as deceptive as rational argument, and teach them to answer arguments by the use of their fists. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant. We should claim that any movement preaching intolerance places itself outside the law, and we should consider incitement to intolerance and persecution as criminal, exactly as we should consider incitement to murder, or to kidnapping; or as we should consider incitement to the revival of the slave trade.

Popper’s words are (unfortunately) highly relevant to our current situation. (Much of The Open Society and Its Enemies is concerned with how societies can avoid plummeting into totalitarianism.) There is a reason why expressions of white nationalism are suddenly cropping up everywhere — in our high schools and colleges, on social media and in the mainstream press, and worst of all, in our federal government. Until recently, we (as a society) viewed such expressions as reprehensible, and we absolutely refused to tolerate them. But Trumpism has pushed the envelope — shifted the Overton Window, as they say — such that now increasing numbers of people perceive white nationalistic rhetoric to be merely “radical” rather than “unthinkable.” These people (most of whom are not personally threatened by white nationalism and/or have not seriously considered the paradox of tolerance) now seem to view extreme expressions of racism and xenophobia, and the misogyny that often goes hand-in-hand with them, as merely unsavory rather than anathema. Increasingly, people are mistaking this blatant hate rhetoric for simply another form of “free speech” that we must reflexively defend.

Those of us who are passionate about free speech, and who want to live in a truly open society, cannot afford to be bystanders anymore. We must absolutely refuse to tolerate intolerant speech and the people who promote intolerant ideologies. The First Amendment may prohibit Congress from passing laws censoring white nationalist beliefs, but the rest of us are well within our rights to wholly refuse to accept, and to refuse to provide a platform for, anyone who espouses or enables such intolerant ideologies.

Skeptics might ask, “Well, how do we precisely define intolerance, and who gets to make that determination?” This is admittedly a potential point of contention (one that I plan to write about soon), but it is not formally any different from current debates we may have over what counts as protected free speech (e.g., does a particular statement constitute libel or fighting words?). While we may each have somewhat different opinions on precise definitions, I believe that we can (and should) easily come to a consensus that people who explicitly advocate ethnic cleansing (as Spencer has), or who incite campaigns of hate speech and harassment targeting women, people of color, transgender people, immigrants, and other minorities (as Yiannopoulos has), are clearly attempting to suppress other people’s right to free expression, and as such, they are promoting intolerance. And we should not tolerate them!

The strategy of free speech absolutism has seemed to suffice over the last fifty years, but that is not because it works per se. Rather, in a post-World War II, post-civil rights world, most (albeit not all) Americans collectively decided not to tolerate blatant unabashed bigotry — that is what kept nefarious ideologies like white nationalism at bay. But cracks are now showing in this shared public commitment. And free speech absolutism will not save us from this — if anything, it will only make matters worse by allowing intolerance to fester, to proliferate, and to garner momentum. In this sense, free speech absolutism is akin to laissez-faire approaches to economic policy: Both seem to promote unadulterated freedom (after all, what could possibly be more free than a completely hands off approach?). But any system that entirely forgoes standards or regulations will ultimately result in atrocities, infringements on other people’s rights, and the consolidation of power in the hands of a few.

This is what we face now. And the only way to stop this from happening, to reverse this trend, is to absolutely refuse to tolerate intolerance.

on 2–19–17, I published a follow-up post addressing many comments & questions I received about this piece.